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TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHENNAI
Honble Thiru Justice E.J. Bellie, President;
Thiru Pulavar V.S. Kandasamy & Dr. (Tmt) Angel Arulraj, Members
THE KULITHALAI CO-OPERATIVE BUILDING SOCIETY LTD.—Appellant/Opp. Party
versus
P. SOUNDARAPANDIYAN—Respondent/Complainant
A.P. Nos. 20 & 246 of 1996—Decided on 20.2.1997

Advocates:
Counsel for the Parties :
For the Appellants :M/s. Sarvabhauman Associates, Advocate.
For the Respondents:Mr. M.V. Chandran, Advocate.

A complaint filed under the Consumer Protection Act against a cooperative society for resumption and re-allotment of a plot is not maintainable if the dispute is not referred to the Registrar for decision as per Section 90 of the Cooperative Societies Act.

Headnote:
CONSUMER PROTECTION ACT - LIMITATION - SECTION 2(1)(G) - DEFICIENCY OF SERVICE - COOPERATIVE SOCIETIES ACT - SECTION 90 - DISPUTES - JURISDICTION - A complaint filed under the Consumer Protection Act against a cooperative society for resumption and re-allotment of a plot is not maintainable if the dispute is not referred to the Registrar for decision as per Section 90 of the Cooperative Societies Act.
Fact of the Case:

The complainant, a member of the opposite party-cooperative building society, was allotted a plot for construction of a house. He paid the entire amount and entered into an agreement of sale with the society. However, the society resumed the plot and reallotted it to another person, alleging that the complainant had violated the condition of the agreement by not putting up the construction within one year. The complainant filed a complaint under the Consumer Protection Act, alleging deficiency of service and seeking compensation.
Finding of the Court:

The court held that the complaint was barred by limitation as the complainant was aware of the resumption and re-allotment proceedings more than three years before filing the complaint. The court also held that the complaint was not maintainable as the dispute was not referred to the Registrar for decision as per Section 90 of the Cooperative Societies Act.
Issues: 1. Whether the complaint was barred by limitation? 2. Whether the complaint was maintainable under the Consumer Protection Act?
Ratio Decidendi: 1. The court held that the complaint was barred by limitation as the complainant was aware of the resumption and re-allotment proceedings more than three years before filing the complaint. The court relied on the complainant's own admission in his lawyer's notice dated 18.6.89, wherein he had stated that he came to know that the society had allotted his plot to another person. 2. The court held that the complaint was not maintainable under the Consumer Protection Act as the dispute was not referred to the Registrar for decision as per Section 90 of the Cooperative Societies Act. The court held that this provision was mandatory and that by-passing and disregarding this provision, the complaint under the Consumer Protection Act could not be filed.
Final Decision: The court allowed the appeal filed by the opposite party and set aside the order of the District Forum. The court dismissed the complaint filed by the complainant. The court also dismissed the appeal filed by the complainant.

ORDER

Thiru Justice E.J. Bellie, President—In this order, the above titled two Appeals viz., AP No. 246/96 filed by the complainant for enhancement of the award passed by the District Forum, and AP No. 20/96 filed by the opposite party for setting aside the order of the District Forum and dismissing the complaint, are dealt with.

2. The complainant Soundarapandian was a member of the opposite party-Building Society. He was allotted by the Society an 'A' class plot bearing No. 17 for construction of house for sale for Rs. 17,940/-. He paid the entire amount, and an agreement of sale was entered into between him and the opposite party and he was given possession thereof. According to the complainant the opposite party took hasty proceedings to resume the plot and re-allot the same to one Balakrishnan who had taken forcible possession of the land. This action of the opposite party amounts to gross abuse of power and negligence which has caused the complainant hardship and mental agony. On these grounds he prayed for an award of Rs. 3,00,000/- being the value of the plot and Rs. 2,00,000/- for mental agony.

3. The opposite party Society in its written version contended that as per the agreement entered into between them and the complainant, the complainant should have put up the construction within one year from the date of taking possession, but he did not do so, and thus he had violated the condition of the agreement and, therefore, resumption proceedings were taken after sending due notice to him. The allotment was cancelled and the plot was resumed and reallotted to one Balakrishnan. The action taken by the opposite party is quite legal and in accordance with the terms and conditions of the agreement and it cannot be assailed. It is further contended that the complainant is not a consumer within the meaning of the Consumer Protection Act, and that the claim is barred by limitation as the resumption of the plot and reallotment to another person took in the year 1989 and the complainant was aware of this proceeding. Therefore, the complaint is liable to be dismissed.

4. The District Forum on consideration of the evidence came to the conclusion that the complainant is a consumer and there has been deficiency in service on the part of the opposite party and the complaint is not barred by limitation. It further held that the complainant is entitled to a compensation of Rs. 70,000/- being the present value of the plot with interest thereon @18% p.a. from 23.4.94 till date of realisation and also to a sum of Rs. 5,000/- as compensation for mental agony and sufferings. Accordingly an award was passed with a costs of Rs. 500/-.

5. In the appeal filed by the opposite party it is contended that the claim is clearly barred by limitation and the finding of the District Forum in this regard is erroneous. From the records it appears to us that this contention is quite acceptable. The complainant would seem to contend that he was not aware of the resumption proceedings and he came to know about that only when he received a notice Ex. All dated 23. 4.94 asking to receive back the amount of sale consideration paid by him failing which the amount would be remitted to the Society's Welfare Fund. But it is his own case that he has sent a Lawyer's notice Ex. A7 dated 18.6.89 to the opposite party. Therein he has clearly stated that he came to know that the opposite party had allotted his plot to another person and the society had no right to do so. This makes it very clear that the complainant knew about the resumption and re-allotment proceedings even on 18.6.89. Therefore, the cause of action has arisen for the complainant at least latest on 18.6.89. But the complaint has been filed only on 18.3.94. So even if the limitation period is 3 years on the date of filing of the complaint, it is clearly barred by time. The District Forum has not considered the said Ex. A-7 Lawyer's notice at all.

6. It is next con tended by the opposite party that even on th

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